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[2007] ZALCD 14
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Kalik v Truworths (Gateway) and Others (D600/05) [2007] ZALCD 14 (10 August 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN DURBAN
CASE
NUMBER: D 600/05
IN
THE MATTER BETWEEN:
ZEENAT
ABDOOL KALIK
APPLICANT
AND
TRUWORTHS
(GATEWAY)
FIRST RESPONDENT
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
SECOND RESPONDENT
COMMISSIONER
HILDA GROBLER
THIRD RESPONDENT
JUDGMENT
MOLAHLEHI J
Introduction
[1] This is an
application in terms of which the applicant sought to review and set
aside the arbitration award issued by the second
respondent under
case number KNDB 7835-05 dated 8 July 2005. The applicant also sought
an order reinstating her retrospectively
into the position she held
prior to her dismissal or alternatively an order referring the matter
back to the second respondent
for arbitration.
Background facts
[2] The applicant was,
prior to her dismissal by the first respondent on the 9 June 2005,
employed as a cosmetic consultant. The
applicant was disciplined and
dismissed for dishonesty relating to the accusation that she had, on
the 11 May 2005, removed a “clinique
tester” from the
store without permission.
[3] Following her
dismissal the applicant referred an unfair dismissal dispute to the
second respondent (the CCMA). The mater was
then set down for a
con/arb by the CCMA. The conciliations part of the process having
failed to resolve the dispute the matter
was then arbitrated upon by
the third respondent (the commissioner). Thereafter the commissioner
issued an award in terms of which
she found the dismissal to be fair
and accordingly confirmed the dismissal of the applicant.
The grounds for review
[4] The applicant
contended that the commissioner failed to advise her of her rights to
a fair arbitration process and procedure
in circumstances where it
was evidently incumbent on her to do so. This according to her
amounted to an irregularity so gross that
it rendered the arbitration
proceedings defective.
[5] The finding of the
commissioner is also challenged on the basis that she misconstrued
the evidence which was before her by concluding
that the allegation
of dishonesty was the only rational conclusion to be drawn from the
evidence.
[6] It was further
contended that the commissioner committed an irregularity by failing
to hear, assess and examine mitigating factors
which were in favor of
the applicant.
[7] The other ground upon
which the applicant relied on in challenging the decision of the
commissioner is that she denied her right
to submit closing arguments
at the end of the hearing.
[8] The arbitration award
was also challenged on the basis that the commissioner failed to
apply her mind on the important facts
of the conditions of a fair
dismissal.
[9] The third respondent
called three witnesses to testify on its behalf at the arbitration
hearing. The first witness was the chairperson
of the disciplinary
hearing who testified mainly on how she arrived at the decision that
the applicant should be dismissed.
[10] The second witness,
Ms Doyanard, testified that she searched for more than a day for an
item known as the “concealer,”
which she wanted to use on
one of the customers. During the course of the search, on the second
day, she was apparently advised
by Ms Chantelle Anthony, the third
witness, that the item was taken by the applicant.
[11] Ms Anthony testified
that she saw the concealer in the applicant’s pencil case. At
that stage she was not aware that
the second witness, Ms Doyanard was
looking for it.
The arbitration award
[12] The commissioner in
her analysis of the evidence found that the applicant did not deny
that she had removed the item in question
and that it was indeed in
her pencil case at the time Ms Anthony opened it. The commissioner
also found that the applicant’s
understanding of the law was
poor in that she argued that she could not be disciplined because no
one had searched her or found
the goods in her possession.
[13] In addition to
finding that the probabilities favored the version of the third
respondent, the commissioner found that the
chairperson of the
disciplinary hearing not to have been biased in finding the applicant
guilty as charged. In this regard she
found that the finding of
guilty by the chairperson was made separate to the hearing of
mitigating circumstances.
Grounds for review
[14] During argument,
counsel for the applicant argued that the commissioner was aware that
the applicant was totally at loss with
regard to cross-examination.
This analysis projects the applicant as someone who was so uninformed
that she would hardly ask a
question to challenge the veracity of the
version of the third respondent’s witnesses.
[15] I do not agree with
this analysis. The record reveals that after explaining the process
and what the arbitrator expected of
the parties, she thought that the
applicant was the representative or the second respondent. As a
result of this mistake
it seems the commissioner called upon the
applicant to make the opening statement. The applicant responded by
informing the commissioner
that she was the employee and that it is
for the third respondent being the employer to begin.
[16] The record further
reveals that after the first witness the commissioner enquired from
the applicant if she wished to question
the witness. The applicant
indicated that she did not have any question for the witness and
confirmed her stance even after the
commissioner enquired from her
whether she was sure of her position of not wishing to cross-examine
the witness. Thereafter, the
applicant cross-examined the two other
witnesses. It must also be mentioned that most of the questions posed
by the applicant were
pertinent to the charges proffered against her.
[17] In support of this
ground the applicant relied on the decision of Soni AJ, in the case
of
Dimbaza Foundries v CCMA & others
(1999) 8 BLLR 779
(LC). The facts and circumstances of this case are distinguishable
from Dimbanza’s case.
[18] In the
Dimbanza’s
case
, the dismissed the employees challenged the severity of the
sanction and not the finding of guilty. However, at the arbitration
hearing the representative of the employee, an admitted attorney with
vast experience in the labour matters, suddenly raised the
issue of
substantive fairness, an issue for which the employer’s
representative, who was inexperience in matters of this
nature, was
ill-prepared.
[19] The court found that
the commissioner was alive to the predicament of the employer’s
representative to handle the issue
that was suddenly raised on the
day of the hearing. The court found that the representative lacked
knowledge and insight on how
to apply for a postponement. In the
light of this circumstances the court found that the arbitrator
should have
mero muto
postponed the matter. The ability to
cross-examine arose in the context where a lay person was taken by
surprise and the case he
was confronted with was not the one he
anticipated or prepared for.
[20] The applicant also
challenged the arbitration award on the ground that the commissioner
did not afford her an opportunity to
make closing arguments. In this
regard reference was made to the case of
Mutual & Federal
Insurance Co Ltd v Commission for Conciliation, mediation and
Arbitration & others
(1997) 12 BLLR 1810
(LC).
[21] This challenge
arises in the context where, at the end of the arbitration hearing
the commissioner indicated to both parties
that:
‘
I am not going
to deal with closing statements, because I believe that the matter
has been ventilated to its fullest, …”
[22] The facts and the
circumstances of this case are again distinguishable from those in
Mutual & Federal case (supra).
In the
Mutual &
Federal case
, the commissioner stopped the applicant from asking
a question that would have highlighted the contradiction between what
the witness
was saying and what he had said in the disciplinary
hearing. The commissioner said that the issue raised by the question
could
be dealt with during the closing argument. In this regard Jali
AJ, as he then was, had this to say:
“
In the
circumstances, the commissioner did not give the parties the
opportunity to present closing arguments. This is notwithstanding
the
fact that earlier on when Mr Pieters sought to challenge the evidence
of the employee, the commissioner had stated that he
will have the
opportunity during argument. In the circumstances he did not know
that Mr Pieters had a number of issues which he
would have liked to
raise in his closing argument. He had also indicated to him that he
would give him an opportunity to address
those issues in the closing
argument. In the circumstances, he was more than obliged to give Mr
Pieters an opportunity to deliver
a closing address. Moreover as he
raised an expectation. In my view, the failure by the commissioner to
give Mr Pieters the opportunity
to present a closing address was a
gross irregularity which on its own should lead to the setting aside
of the award.”
[23] In
Mutual &
Federal case (supra)
not only did the applicant’s
representative indicate that he wished to address the
arbitrator, but the opportunity
which was initially offered by the
commissioner, was later denied.
[24] In this matter the
commissioner’s view regarding the approach he was to adopt was
made clear to both parties on the last
day of the hearing. The
commissioner cannot be criticized for the approach she adopted as she
was entitled to do so in terms of
section 138 of the Labour Relations
Act 66 of 1995 (the LRA). Section 138 of the LRA empowers the
commissioner to conduct an arbitration
hearing in a manner that he or
she considers appropriate, in order to determine the dispute fairly
and quickly.
[25] Turning to the issue
of mitigating circumstance, the applicant contended that the
arbitration award was reviewable because
the commissioner did not
afford her the opportunity to present mitigating circumstance.
[26] In my view, it is
not necessary to hear mitigating circumstances where the relationship
between the employer and the worker
has irretrievably broken down due
to misconduct relating to dishonesty. See
Cox v Commission for
Conciliation, Mediation and Arbitration
(2001) ILJ 137 (LC) and
Naidoo v Lever Ponds
(1999) 20 ILJ 1610 (CCMA).
[27] An employment
relationship broken down as a result of an act of dishonesty can
never be restored by whatever amount of mitigation.
The underlying
reason for this approach is that an employer cannot be expected to
keep dishonest workers in his/her employ. The
other reason for this
is to send an unequivocal message to other employees that dishonesty
will not be tolerated. See
Consani Engineering (PTY) LTD v
Commissioner for Conciliation, Mediation and Arbitration and Others
(2004) 25 ILJ 1707 (LC). The rational for this approach are also
informed by the consideration that a worker with an unblemished
record cannot after an incident relating to an act of dishonesty,
continue to be trusted. It is the operational risk to the business
of
an employer that arises from the dishonest conduct, which cancels off
whatever good record the worker may have had before the
commission of
the offence. In other words there would be no purpose in conducting
an inquiry into mitigating circumstances where
a worker is guilty of
misconduct relating to dishonesty. However, this approach would not
apply in cases involving other forms
of misconduct.
[28] In the
Toyota SA
Motors (Pty) Ltd v Radebe & others
(2001) 21 ILJ 340 (LAC),
Zondo AJP as he then was said:
“
Although a long
period of service of an employee will usually be a mitigating factor
where such employee is guilty of misconduct,
the point must be made
that there are certain acts of misconduct which is of such a serious
nature that no length of service can
save an employee who is guilty
of them from dismissal. To my mind one such clear act of misconduct
is gross dishonesty.”
[29] In this respect,
Grogan:
Dismissal
(
Juta & Co: Lansdowne, 2002
) at
99, is quoted with approval by Murphy AJ in
Consani
Engineering(supra)
as saying:
“
An employer has
two reasons for wanting to rid itself of a dishonest employee. One is
that employee can no longer be trusted. The
other, less frequently
acknowledged but no less legitimate, is the need to send a signal to
other employees that dishonesty will
not be tolerated. This
consideration relates to the deterrence theory of punishment. The
question to be asked is whether a repetition
of the misconduct,
either by the same employee or by others, will adversely affect the
employer’s business, the safety of
the workforce and/or the
employer’s trading reputation.”
[30] Murphy AJ went
further to quote again with approval the decision in
De Beer
Consolidated Mines Ltd v CCMA and others
(2000) 21 ILJ 1051 (LAC)
at 1058 para 22, where the court held that:
“
Dismissal is
not an expression of moral outrage: must less is it an act of
vengeance. It is, or should be, a sensible operational
response to
risk management in the particular enterprise. That is why supermarket
shelf packers ho steal small items are routinely
dismissed. Their
dismissal has little to do with society’s moral opprobrium of a
minor theft; it has everything to do with
society’s moral
opprobrium of a minor theft; it has everything to do with operational
requirements of the employer’s
enterprise.”
[31] The other issue
which the applicant raised in challenging the arbitration award
relates to the finding of the commissioner
that the respondent had a
“zero tolerance policy” to misconduct relating
dishonesty. The applicant argued in this regard
that no evidence was
led by the respondent about the existence of the policy. This
argument can only be sustained if one adopts
a superficial analysis
of the commissioner’s finding. An objective analysis of the
commissioner’s finding reveals that
what the commissioner was
referring to is the high standard that the respondent has put in
place in dealing with misconduct concerning
dishonesty. This relates
to the fact that the second respondent had previously taken action
against those involved in dishonest
conduct.
[32] Even if it was to be
found that the applicant’s argument was sustainable as
concerning the finding on the “zero
tolerance policy,” I
do not belief that such finding would materially affect the
rationality of the arbitration award. The
award would still stand if
the finding on the “zero tolerance policy” was to be
excised from the award.
[33] In conclusion I do
not agree with the submission of the applicant that the award of the
commissioner was irrational and unjustifiable.
I do not agree that
the commissioner’s award does not satisfy the rationality and
justifiability test as set out in the
Carephone (Pty) Ltd v Marcus
N.O and Others
(1998) 19 ILJ 1425 (LAC). The commissioner
reasoned her award and found that on the applicant’s own
version an
offence was committed. The applicant did not deny that the
item was in her pencil case when Ms Anthony opened it and that she
removed
it without authority.
[34] It may well be that
if this matter was considered as on appeal, another commissioner
may have found the decision
to be incorrect. The test for
review as indicated above is whether the decision of the commissioner
is rational in that it is objectively
connected to the evidence
before the commissioner. The commissioner in this case considered and
applied her mind to the evidence
presented before her both in
relation to the substantive and procedural fairness.
[35] Having regard to the
circumstances of this case and the nature of the issues raised by the
applicant, I do not belief that
it would be fair to issue costs as a
matter of law.
[36] It was in the light
of above reasons that I ordered that:
(a)
The application to review and set aside the award issued by the third
respondent is dismissed.
(b)
There is order as to costs.
_____________
MOLAHLEHI
J
DATE
OF HEARING :
15
JUNE 2007
DATE
OF JUDGMENT :
10
AUGUST 2007
APPEARANCES
For
the Applicant : Advocate D G Tobias
Instructed
by : R Hirallal
(Applicant’s Attorney)
For
the Respondent: D Farrel of Farrel & Associates